Addressing Counterfeits without Endangering Public Health

 Christa Cepuch


After years of largely secretive negotiations, the controversial Anti-Counterfeiting Trade Agreement (ACTA) might be concluded this month, or so hoped the negotiators. This agreement seeks to ensure greater enforcement measures of all intellectual property rights, including, under the pretence of addressing public health and safety concerns, those related to medicines. Yet for Christa Cepuch of HAI Africa, in the area of public health, anti-counterfeiting initiatives are not an appropriate way to address the real health concerns about medicines quality, safety and efficacy in developing countries. In this article, Christa explains how the ongoing propaganda surrounding counterfeits is being used to advance a wider IP monopoly enforcement agenda to the detriment of public health.


What is a counterfeit medicine?  The answer depends on who responds. To an English-speaking lay-person, it generally means ‘fake’ or ‘a pill made of chalk’. To the World Trade Organization, it means a ‘trademark infringement.’ (An illustration of trademark infringement would be someone else using a pharmaceutical company’s trade name or trademark on a particular product.) To the World Health Organization, it means ‘deliberately and fraudulently mislabeled with respect to identity or source’. The International Medical Products Anti-Counterfeit Taskforce (IMPACT) uses a nasty-looking, fanged, forked-tongue cobra in a brochure to help clarify its definition of counterfeit medicines.


The puzzling list of definitions does not stop there. Under Kenyan law, counterfeits are addressed through the Anti-Counterfeit Act, which was passed in 2008 and came into force in 2009. In the Act, the definition of ‘counterfeiting’ begins with the phrase: “taking the following actions without the authority of the owner of intellectual property right subsisting in Kenya or elsewhere in respect of protected goods”.


What does this mean?  Does it mean fake?  Does it mean trademark infringement?  Does it mean mislabelling?  What it actually means is much broader than all of this. Kenya’s Act says that if you infringe any kind of intellectual property (IP), then you are counterfeiting. If you infringe a patent (even, astoundingly, one recognized outside Kenya), you are now a counterfeiter.


This is a whole new meaning, and this is the essence of the problem with anti-counterfeiting initiatives which appear to be springing up in many African countries, as well as with the Anti-Counterfeiting Trade Agreement (ACTA). Suddenly patent rights have been brought into the already-confusing counterfeit debate. There is need to stop this and ensure that the definition of counterfeit is not expanded to include patent infringement.


Patents, Trademark s and Copyrights


IP is important for trade purposes, but it has nothing to do with quality. When you get a patent, you have been acknowledged for inventing something new. A trademark is a registered sign to identify your product. Copyright is granted to an author on written material and to an artist for a musical creation.  Regardless of whether your copyrighted art is enjoyable, or if your goods under trademark and/or patent are sound (i.e. regardless of the quality of the products), all these types of IP can be granted.


Blurring the line between counterfeiting and patent infringement is not just a theoretical problem. To date, at least 22 shipments of generic medicines have been seized at various European ports because of the confusion. These medicines were stopped en route to various public health programmes, including HIV treatment projects, in developing countries. Any seizure disrupts already tenuous procurement and supply chains. Shipment delays (or cancellations, in the worst case scenario) increase the risk of stock-outs in health facilities and can distort medicine prices.


The Real Issue: Quality and Safety of Medicines


The actual root of the problem is grounded in issues of public health, safety and quality. This is where the attention should be focused: to fix the critical reality of substandard and adulterated medicines. However, rather than developing the solution from a public health and regulatory angle (i.e., How to protect the public by preventing poor quality medicines from hitting the market; and/or How to get unsafe medicines off the market?), the forces behind the anti-counterfeiting movement are using an ‘IP enforcement’ approach. Why? Could it be another – the newest, perhaps most creative – effort by powerful industries to protect their patents, and as such their profits?


Regardless of the public health claims being made by the anti-counterfeiting movement, it is absolutely inappropriate to deal with quality and safety issues by strengthening IP. Rather, the solution must begin in strengthening National Medicines Regulatory Agencies (NMRAs) and their services (registration, post market surveillance, pharmacovigilance, etc). For medicines, only the NMRA in a country can determine quality, efficacy and safety; not the patent office or customs officials. Indeed, there are patents on many medicines that are completely unmarketable due to quality and safety concerns.


HAI Africa’s Approach


Health Action International (HAI) is an independent, global network that aims to increase access to essential medicines and improve their rational use through research excellence and evidence-based advocacy. In support of people trying to access the medicines they need as they struggle to realise their right to health, HAI Africa and its network partners continue to resist efforts to blur the line between generics and counterfeits.


HAI strongly refutes those who claim to be ‘fighting counterfeits and protecting public health’ while their efforts are in reality being used to frustrate access to generic medicines in order to protect enormous commercial interests. HAI Africa acknowledges that there is a genuine concern over substandard and adulterated medicines, which are dangerous for individuals and harmful to the broader public health.


Will enforcing various types of IP address these quality and safety issues? No. Enforcing IP through the framework of the ongoing anti-counterfeit initiatives puts access to medicines at risk and does not address the issues of the quality and safety of medicines.


Author: Christa Cepuch is a pharmacist and Programmes Director at Health Action International Africa

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